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Archive for March, 2009

Expert Witness or Advocate?

Whilst most commercial property disputes are settled between the parties, some do need to be resolved by a third party - a judge, arbitrator or independent expert.

In such cases, surveyors are often called upon to give evidence as an expert witness.  In addition to following the rules applicable to the tribunal before whom they appear, surveyors adopting such a role must also comply with the RICS Practice Statement and Guidance Note for Surveryors acting as expert witnesses.  A new, third edition has been effective since 1 January 2009.  Its principal message is to remind an expert witness that his prime duty is to the tribunal before whom he appears.  His evidence must be independent, impartial and uninfluenced by those instructing or paying him.  The expert witness is there to assist the tribunal and not to act as an advocate for his client.

There are occasions, however, when a surveyor appears before a tribunal (not a court before which a surveyor has no right of audience) as an advocate.  Here again, the RICS has produced a 1st edition of a Practice Statement and a 2nd edition of a Guidance Note.  Both have been effective since 1 January 2009.  If undertaking this role, the surveyor-advocate owes duties to his client but also must act properly, fairly and assist in maintaining the integrity of the tribunal’s process.

The roles of expert and advocate are very different and one would think it is not appropriate to undertake both when appearing before one tribunal.  However, unless the tribunal prohibits a dual role, or other relevant factors make it inappropriate, the RICS advises it is possible.  In fact, the undertaking of the dual role is not unusual particularly in relation to rent reviews.  The surveyor must, though, understand the distinction between the two roles and clearly distinguish between them at all times.  If he does not, the tribunal may form the view that the expert evidence is little more than advocacy and thus give it little or no weight.

If you need to know more, why not contact Hatherleigh Training?